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14. Homicide Defences and Family Relationships in Criminal Laws

Contents Introduction 621 Recognising family violence in homicide defences 621

Self-defence and excessive self-defence 622 Provocation 632 A separate partial defence of family violence 638 Summary of jurisdictional approaches 642 Submissions and consultations 643 Commissions’ views 648

Recognising family relationships in criminal law responses to family violence 654 Current approaches to recognising family relationships in criminal laws 655 Submissions and consultations 658 Commissions’ views 660

Introduction 14.1 This chapter is concerned with the extent to which the criminal law should recognise family violence as relevant to a defence to homicide, in circumstances where a victim of family violence kills the family member who was violent towards him or her. This raises the related issue of whether current defences to homicide for victims in family relationships are adequate. This chapter also considers the categories of relationships that should be recognised where a family relationship between the offender and the victim is prescribed as an element of a criminal offence or defence, or as a sentencing factor.

Recognising family violence in homicide defences 14.2 In Chapter 6, the Commissions recommend that, where a state or territory’s criminal legislation expressly refers to the term ‘family violence’—including in the context of homicide defences—the term should be defined consistently with the civil law definition in Recommendation 5–1.1 In the Commissions’ view, the different policy objectives of the criminal law and family violence legislation are not compromised by the adoption of a common understanding of what constitutes family

1 Rec 6–1.

622 Family Violence — A National Legal Response

violence in the context of recognising family violence as relevant to a defence to homicide.

14.3 Each state and territory has different laws in relation to the offences of murder and manslaughter and different defences to those offences.2 The most relevant defences to homicides committed in a family violence context are provocation, self-defence, and excessive self-defence. Provocation and excessive self-defence are partial defences to murder, reducing it from an offence of murder to manslaughter. Self-defence is a complete defence to criminal liability.

14.4 Several states and territories have given substantial consideration to recognising family violence in the context of defences to homicide.3 A number of important statutory reforms have resulted from this, with a view to accommodating the experiences of family violence victims who kill. These reforms are considered below.

Self-defence and excessive self-defence Common law

14.5 Self-defence. The common law has long recognised that a person is justified in using some force in legitimate self-defence. It is lawful to act in self-defence, and therefore it acts as a complete defence to criminal liability, with the onus on the prosecution to negate self-defence.4 The common law doctrine of self-defence limits the use of force to situations where it is necessary for the accused to use force, and the degree of force is not excessive in the circumstances.5 The test, as articulated by the High Court in Zecevic v Director of Public Prosecutions (Vic), imports both a subjective and an objective element:

The question to be asked in the end is quite simple. It is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he [or she] did. If he [or she] had the belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt as to the matter, then he [or she] is entitled to an acquittal.6

2 Sentencing options for persons convicted of murder or manslaughter also differ across states and

territories. Most jurisdictions have abolished mandatory life sentences for murder convictions but they remain in place in Queensland, South Australia and the Northern Territory: Criminal Code (Qld) s 315; Criminal Law Consolidation Act 1935 (SA) s 11; Criminal Code (NT) ss 157, 161.

3 See, eg, Law Reform Commission of Western Australia, Review of the Law of Homicide, Project 94 (2007); Victorian Law Reform Commission, Defences to Homicide: Final Report (2004), see especially chs 2–4; New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants (2001), [13]; Northern Territory Law Reform Committee, Self Defence and Provocation (2000), iii, 43–45; Model Criminal Code Officers Committee—Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5, Fatal Offences Against the Person: Discussion Paper (1998); New South Wales Law Reform Commission, Partial Defences to Murder: Provocation and Infanticide (1997); Australian Law Reform Commission, Equality Before the Law: Justice for Women (Part 1), Report 69 (1994), [12.3]–[12.6]; Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 2, General Principles of Criminal Responsibility: Final Report (1992); New South Wales Task Force on Domestic Violence, Report of New South Wales Task Force on Domestic Violence to Honourable NK Wran QC, MP Premier of New South Wales (1981).

4 D Brown and others, Brown, Farrier, Neal and Weisbrot’s Criminal Laws: Material and Commentary on Criminal Law and Process in New South Wales (4th ed, 2006), 627.

5 Ibid. 6 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, 661.

14. Homicide Defences and Family Relationships in Criminal Laws 623

14.6 The common law test, therefore, imports two elements—that the accused person genuinely believed that it was necessary to do what he or she did, and that he or she had reasonable grounds for that belief. Reasonableness is assessed according to the ‘belief of the accused, based upon the circumstances as he [or she] perceived them to be’, rather than ‘the belief of the hypothetical person in his [or her] position’.7

14.7 Accordingly, in determining whether an accused person’s belief was based upon reasonable grounds, a jury may consider, in broad terms, evidence of the surrounding circumstances, all facts within the accused’s knowledge, the personal characteristics of the accused, and the prior conduct of the victim.8

14.8 The common law test does not import a requirement of an ‘imminent threat’ or a ‘proportionate response’ to the threat. Such considerations are, however, relevant to an assessment of the existence and reasonableness of the accused person’s belief that his or her actions were necessary for self-preservation.9

14.9 In the family violence context, some commentators have observed that the common law of self-defence is, at least theoretically, capable of requiring the fact-finder to ‘walk in the shoes of the battered woman in assessing her claim to self-defence’.10 Evidence of the nature and history of the accused’s relationship with the deceased may include:

• evidence of prior violence against the accused, including: patterns of ongoing abuse; the escalation of violence over time; evidence of how the relevant threat was the same or different from previous threats; and the cumulative effects of violence upon the accused;

• relevant physical and psychological characteristics of the accused, as well as his or her cultural background and personal circumstances, such as social support structures, financial means and other social or cultural barriers to reporting or escaping from violence; and

• the means available to the accused to respond to the threat, and his or her efforts to resist or minimise it—for example, previous attempts to defend him or herself, flee or seek assistance, and reasons for returning to the relationship.11

14.10 Such evidence may take the form of one of more of the following:

• evidence of the accused person; • evidence of other persons such as family members, neighbours, friends or

professionals who witnessed violence or observed injuries, or who were told about it by the accused or the deceased;

7 R v Hawes (1994) 35 NSWLR 294, 306. See also R v Hendy (2008) 191 A Crim R 81, 87; R v Portelli

(2004) 10 VR 259, 272. 8 See, eg, R v Wills [1983] 2 VR 201; R v Hector [1953] VLR 543; R v Besim (2004) 148 A Crim R 28. 9 Osland v The Queen (1998) 197 CLR 316, 382; Zecevic v Director of Public Prosecutions (Vic) (1987)

162 CLR 645, 662. 10 A Hopkins and P Easteal, ‘Walking in Her Shoes: Battered Women who Kill in Victoria, Western

Australia and Queensland’ (2010 - in press) 35(3) Alternative Law Journal. 11 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004), [4.19]–[4.20].


• the testimony of expert witnesses about the nature and dynamics of family violence, both generally and specifically in relation to the accused’s circumstances. Expert witnesses may give evidence about a range of matters including: why people remain in abusive relationships; barriers to reporting or fleeing violence; the accused’s ability to perceive danger; relevant cultural factors; and explanations of other aspects of the accused’s conduct, such as why he or she might have acted in self-defence despite planning the attack; and

• documentary evidence, including protection orders or criminal family-violence related proceedings.12

14.11 Notwithstanding that the legal concept of self-defence is, at least theoretically, capable of accommodating the nature and dynamics of family violence, its interpretation and application in practice have been criticised as having largely ‘excluded the experience of battered women, and undermined their claims to reasonableness’.13 The Victorian Law Reform Commission (VLRC) identified the following impediments in its 2004 report on defences to homicide:

• the traditional association of self-defence as a ‘one-off’ spontaneous encounter, such as a pub brawl scenario, between two people (usually men) of relatively equal strength—whereas killings in the family violence context are typically in response to an ongoing threat rather than an attack; and

• the fact that men are often physically stronger than their female partners means that women who are victims of family violence more often kill their abusive partners in non-confrontational circumstances—such as when they are asleep or have their guard down—use a weapon, or enlist the assistance of others.14

14.12 The VLRC commented that these factors may adversely influence a jury’s assessment of self-defence. It noted that juries may find that the accused either lacked a genuine belief as to the necessity of his or her actions, or that such a belief was not reasonable because the:

• threat lacked immediacy—for example, where the accused has waited until the deceased was asleep;

• threat lacked seriousness—for example, where the accused has responded to what may appear to be a relatively minor threat; or

• accused person had avenues available to them to escape or seek help.15

14.13 Other commentators have observed that outcomes are largely dependent upon an understanding of the relevance of family-violence related evidence on the part of

12 Ibid [4.5], citing Taskforce on Women and the Criminal Code (Qld), Report of the Taskforce on Women

and the Criminal Code (2000), 120. 13 A Hopkins and P Easteal, ‘Walking in Her Shoes: Battered Women who Kill in Victoria, Western

Australia and Queensland’ (2010 - in press) 35(3) Alternative Law Journal. 14 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004), [3.11]. 15 Ibid, [3.12].


judges, jurors and legal representatives. This includes an understanding of the relevance of evidence of the accused person’s history of abuse and evidence of the general dynamics or ‘social framework’ of family violence.16 In particular, commentators have suggested that misunderstandings about the relevance of such evidence may arise in those cases in which the accused person does not seek to attribute his or her actions to a psychological syndrome or an abnormality of the mind, but argues rather that the killing was a rational and reasonable response—as informed by all of the circumstances in which the accused found him or herself.17

14.14 Excessive self defence. Excessive self-defence can, in certain circumstances, operate as a partial defence at common law. The common law position on excessive self-defence, stated by the High Court in Viro v The Queen is that self-defence which was necessary but involved the use of excessive force involving death, should lead to a verdict of either manslaughter or murder—depending on whether the accused believed that the force the accused used was reasonably proportionate to the danger which the accused believed he or she faced.18

Model Criminal Code

14.15 In 1992, the Standing Committee of Attorneys-General (SCAG) Model Criminal Code Officers Committee (MCCOC)—now the Model Criminal Law Officers Committee (MCLOC)—published the Model Criminal Code—Chapter 2, General Principles of Criminal Responsibility Report. That report recommended the following legislative definition of self-defence:

313. Self-defence

A person is not criminally responsible for an offence if the conduct constituting the offence was carried out by him or her in self-defence.

313.1 Conduct is carried out by a person in self-defence if

the person believed that the conduct was necessary

— to defend himself or herself or another person; or

— to prevent or terminate the unlawful imprisonment of himself or herself or another person; or

— to protect property from unlawful appropriation, destruction, damage or interference; or

— to prevent criminal trespass to any land or premises; or

16 A Hopkins and P Easteal, ‘Walking in Her Shoes: Battered Women who Kill in Victoria, Western

Australia and Queensland’ (2010 - in press) 35(3) Alternative Law Journal. J Stubbs and J Tolmie, ‘Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on Battered Woman Syndrome’ (1997) 23 Melbourne University Law Review 709; E Sheedy, J Stubbs and J Tolmie, ‘Defending Battered Women on Trial: the Battered Woman Syndrome and its Limitations’ (1992) 16 Criminal Law Journal 369.

17 J Stubbs and J Tolmie, ‘Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on Battered Woman Syndrome’ (1997) 23 Melbourne University Law Review 709, 722.

18 Viro v The Queen (1978) 141 CLR 88, 146–147.


— to remove from any land or premises a person who is committing criminal trespass; and

his or her conduct was a reasonable response in the circumstances as perceived by him or her.

313.2 This section does not apply if force involving the intentional infliction of death or really serious injury is used in protection of property or in the prevention of criminal trespass or in the removal of such a trespasser.

313.3 This section does not apply if the conduct to which the person responded was lawful and that person knew that it was lawful.

313.3.1 Conduct is not lawful for the purposes of section 313.3 merely because the person carrying it out is not criminally responsible for it.19

14.16 The MCCOC indicated that the definition of self-defence retains the subjective and objective elements of Zecevic, but is designed to simplify the law:

The test as to necessity is subjective, but the test as to proportion is objective. It requires the response of the accused to be objectively proportionate to the situation which the accused subjectively believed she or he faced (the words ‘as perceived by him or her’ were added to make this clear).20

14.17 The MCCOC also discussed excessive self-defence in its 1998 discussion paper on fatal offences against the person and recommended that a partial defence of this nature not be re-introduced:

On balance, the Committee is not in favour of re-introducing excessive self-defence, particularly in the context of abolishing provocation. As a concept, excessive self-defence is inherently vague. This aspect has to date resulted in no satisfactory test being promulgated.21

State and territory legislation

14.18 Legislative provisions govern self-defence in NSW,22 Victoria,23 Queensland,24 Western Australia,25 South Australia,26 Tasmania,27 ACT,28 and the Northern

19 Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal

Code—Chapter 2, General Principles of Criminal Responsibility: Final Report (1992), 70. 20 Ibid, 71. 21 Model Criminal Code Officers Committee—Standing Committee of Attorneys-General, Model Criminal

Code—Chapter 5, Fatal Offences Against the Person: Discussion Paper (1998), 113. 22 Crimes Act 1900 (NSW) s 418. 23 Crimes Act 1958 (Vic) ss 9AC, 9AE. See also s 9AH. 24 Criminal Code Act 1899 (Qld) ss 271, 272. 25 Criminal Code Act Compilation 1913 (WA) s 248(4). These provisions follow the example of the Model

Criminal Code: Western Australia, Parliamentary Debates, Legislative Council, 15 May 2008, 3123 (S Ellery–Minister for Child Protection).

26 Criminal Law Consolidation Act 1935 (SA) s 15(1). 27 Criminal Code Act 1924 (Tas) s 46. 28 Criminal Code (ACT) s 42.


Territory.29 While the wording of specific provisions differs, all statutes—with the exception of the Queensland Criminal Code—expressly recognise the context-specific nature of the reasonableness requirement. The Commissions consider recent reforms to and other notable aspects of these defences below.

New South Wales

14.19 In 2002, NSW introduced new laws in relation to self-defence and reintroduced the defence of excessive self-defence.30 The Attorney General stated in the Second Reading Speech of the Crimes Amendment (Self-Defence) Bill 2001 (NSW), that:

The Bill follows the general concept of self-defence laid down by the Model Criminal Code, so that a defendant who actually believed it was necessary to do what he did to repel an attack, even if he was wrong about that perception, may seek to rely on self-defence, so long as it was a reasonable response in the circumstances as perceived by the defendant. However, the bill contains two departures from the Model Criminal Code. The first departure is the re-introduction of the law of excessive self-defence ... This was the common law position as previously stated by the High Court in Viro …

… The second difference to the Model Criminal Code relates to self-defence in the context of defence of property ... The Model Criminal Code limits the defence of property and criminal trespass by not permitting death or really serious harm to be occasioned.

This limit has been modified under the Bill. Obviously, it is not desirable to encourage persons to defend their property with excessive force. The Model Criminal Code emphasised the need to consider the value of human life by indicating that really serious injury or death could never enliven a self-defence issue in defence of property or to prevent criminal trespass. …

There can be no circumstances where it is appropriate to intentionally or recklessly take a human life in the protection of property or to prevent criminal trespass, although it may be permissible to do serious bodily harm in certain circumstances if necessary and reasonable.31

Victoria

14.20 The Victorian Crimes (Homicide) Act came into effect in 2005. The Act implemented a series of recommendations of the 2004 VLRC report on defences to homicide.32 Key reforms included:

• the abolition of provocation as a partial defence to murder;33

29 Criminal Code (NT) s 43BD. The Northern Territory provision largely adopts the self-defence provisions

from the Model Criminal Code, following the recommendation in Northern Territory Law Reform Committee, Self Defence and Provocation (2000), 3–4.

30 Crimes Amendment (Self-Defence) Act 2001 (NSW). 31 New South Wales, Parliamentary Debates, Legislative Assembly, 28 Nov 2001, 19093 (B Debus—

Attorney General). 32 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004). 33 Discussed below.


• defining the law of self-defence in respect of homicide offences;34

• recognising excessive self-defence through the creation of a new offence of defensive homicide;35 and

• providing legislative guidance on the admissibility of evidence of family violence in the context of homicide defences.36

14.21 The new offence of defensive homicide is contained in the Crimes Act 1958 (Vic) s 9AD. It applies where an accused kills, believing the conduct to be necessary to defend himself or herself or another from the infliction of death or serious injury, but where he or she did not have reasonable grounds for that belief.

14.22 The VLRC further recommended that the Victorian Department of Justice review the operation of s 9AD after it had been in force for five years, with a view to identifying how the defence is being used, in what circumstances, and with what outcome.37 This review is in progress.38

Queensland

14.23 The Queensland formulation of self-defence is distinct from that of other jurisdictions in that it does not expressly recognise the contextual nature of reasonableness, and requires acts of self-defence to be undertaken in response to an unlawful assault.39 Section 271 relevantly provides that:

(1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

(2) If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person can not otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the

34 The statutory definition of self-defence applies to murder and manslaughter only. The common law test as

outlined in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, 661 continues to apply to all other offences where self-defence is applicable: P Priest, Defences to Homicide (2005) <www.vicbar.com.au/webdata/CLEFiles/Defences%20to%20Homicide.pdf> at 22 January 2010. However, the Victorian Supreme Court has held that—as the statutory definitions of self-defence in the Crimes Act 1958 (Vic) ss 9AC (murder) and 9AE (manslaughter) do not expressly abrogate the common law—as a matter of fairness juries should be directed on both common law and statutory self-defence: Director of Public Prosecutions (Vic) v Samson Rimoni (Ruling No 1) [2010] VSC 26, [26]–[33]. This matter is under consideration by the Victorian Government: Department of Justice (Vic), Defensive Homicide—Review of the Offence of Defensive Homicide: Discussion Paper (2010) <http://www.justice. vic.gov.au/> at 01 September 2010, [285]–[291].

35 Discussed below. 36 Discussed below. 37 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004), [3.112], Rec 10. 38 Victorian Government, Submission FV 120, 15 June 2010. See also Department of Justice, Victoria

Review of the Offence of Defensive Homicide Discussion Paper, August 2010. 39 The Queensland self-defence provisions have been the subject of judicial criticism for lacking clarity and

simplicity. See, eg, R v Gray (1998) 98 A Crim R, 589, 592.


person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.40

14.24 The requirement for defensive action to be taken in response to an assault means that evidence of family violence is relevant in the more limited context of assessing the accused person’s reaction to a particular assault that precipitated the killing. That is—a particular assault must have caused the accused to reasonably apprehend death or grievous bodily harm, and reasonably believe that there was no other means of preserving him or herself.

14.25 This requirement has been criticised as fundamentally inconsistent with the dynamics of family violence—in particular that killings in response to family violence usually stem from ongoing patterns of abuse, and often occur in non-confrontational circumstances. It has been argued that—by effectively viewing the reasonableness requirement through the prism of a response to an assault—the Queensland formulation of self-defence reduces the likelihood that victims of family violence who kill their abusers will be able to meet the conditions of self-defence.41

14.26 Some commentators have criticised the sentencing regime of mandatory life imprisonment for murder in Queensland.42 It has been argued that the lack of sentencing discretion has rendered self-defence an ‘all-or-nothing’ defence for victims of family violence who kill. Such persons are either acquitted or are convicted of murder and sentenced to life imprisonment.43

14.27 These factors led to the introduction of the separate, partial defence of killing in an abusive relationship into the Criminal Code (Qld) in February 2010,44 in response to the recommendations of an independent review commissioned by the Queensland Government.45 This provision is discussed separately below.

Western Australia

14.28 . In introducing amendments to self-defence in Western Australia, Suzanne Ellery, the Minister for Child Protection stated in the Second Reading Speech of the Criminal Law Amendment (Homicide) Bill 2008 that:

Another important change contained in this bill is that the harmful act that the person believes it is necessary to act against in self-defence will not have to be imminent. By providing that the threat need not be imminent, the defence will more readily apply to

40 See also Criminal Code (Qld) s 272 in respect of provoked assault. 41 G Mackenzie and E Colvin, Homicide in Abusive Relationships: A Report on Defences (2009), prepared

for the Attorney-General and Minister for Industrial Relations (Qld), 26; A Hopkins and P Easteal, ‘Walking in Her Shoes: Battered Women who Kill in Victoria, Western Australia and Queensland’ (2010 - in press) 35(3) Alternative Law Journal. Queensland Government Office for Women, Report of the Taskforce on Women and the Criminal Code (2000), Ch 6. While identifying limitations in the self-defence provisions, the Taskforce reported that its members were divided on the need for legislative reform and, therefore, did not make any recommendations in this respect.

42 Criminal Code (Qld) s 305. 43 A Hopkins and P Easteal, ‘Walking in Her Shoes: Battered Women who Kill in Victoria, Western

Australia and Queensland’ (2010 - in press) 35(3) Alternative Law Journal. 44 Criminal Code (Qld) s 304B. 45 G Mackenzie and E Colvin, Homicide in Abusive Relationships: A Report on Defences (2009), prepared

for the Attorney-General and Minister for Industrial Relations (Qld).


women who are the victims of domestic violence in the so called ‘battered spouse’ situation. It will still be necessary for persons to show that there are reasonable grounds for the person’s belief that the act of self-defence was necessary and that the force used must be objectively reasonable in the circumstances the person believed to exist. It is not expected that this provision will apply to situations in which it would be reasonable for the person to take other steps, such as going to the police or escaping from the harmful situation.46

South Australia

14.29 In South Australia, it is also a partial defence to a charge for murder—thereby reducing the offence to manslaughter—if the accused genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but the conduct was not reasonably proportionate to the threat the accused genuinely believed to exist.47 As noted above, a provision to similar effect is contained in the crimes legislation of NSW48—as well as that of Western Australia.49

Leading evidence of family violence in the context of self-defence

14.30 As identified in Chapter 13 in relation to offences, evidence of family violence is generally admissible where it is relevant to a fact in issue. In the context of self-defence, such evidence may be probative of both the existence of an accused person’s belief that his or her actions were necessary to preserve himself or herself, and the reasonableness of that belief.

14.31 The Victorian and Queensland parliaments have provided legislative guidance on the potential relevance of evidence of family violence in the context of homicide defences, including self-defence.

Victoria

14.32 As noted in Chapter 13, where family violence is alleged, s 9AH of the Crimes Act 1958 (Vic) provides that evidence of family violence50 may be relevant to defences to murder,51 defensive homicide52 and manslaughter.53 This provision does not operate as a separate defence, but confirms the potential relevance of family-violence related evidence to self-defence. Under s 9AH, where family violence is alleged, self-defence is available even if an accused person is responding to harm that is not immediate; or his or her response uses disproportionate force.

46 Western Australia, Parliamentary Debates, Legislative Council, 15 May 2008, 3123 (S Ellery–Minister

for Child Protection). 47 Criminal Law Consolidation Act 1935 (SA) s 15(2). 48 Crimes Act 1900 (NSW) s 421. 49 Criminal Code Act Compilation 1913 (WA) s 248(3). The partial defence of excessive self-defence was

introduced by the Criminal Law Amendment (Homicide) Act 2008 (WA). 50 Ch 6 discusses the definition of family violence used in Crimes Act 1958 (Vic), as compared with that

used in the Family Violence Protection Act 2008 (Vic). 51 Crimes Act 1958 (Vic) s 9AC. 52 Ibid s 9AD. 53 Ibid s 9AE.


14.33 Types of evidence that can be adduced include:

• evidence about the history of the relationship between the accused person and a family member;

• the general nature and dynamics of relationships affected by family violence;

• the cumulative effects, including psychological effects, on the person or a family member of family violence; and

• social, cultural or economic factors that impact on the person or a family member who has been affected by family violence.

14.34 In introducing the amendments, the Victorian Attorney-General, Rob Hulls, stated that the section ‘highlights the types of relationship and social context evidence that may be relevant in such cases’.54 The Explanatory Memorandum to the Crimes (Homicide) Bill 2005 (Vic) indicates that the word ‘may’ is used in the sense of possibility, rather than to denote the conferral or exercise of a discretionary power.55

14.35 The Victorian model has, however, been criticised by one lawyer as a ‘breathtaking extension’ of the law of self-defence:

Taken to their logical (or, perhaps, illogical) conclusion, these new provisions suggest that a number of acts of trivial ‘harassment’ (whatever that term might embrace) by a family member, which do not involve actual or threatened abuse, might permit a person to use disproportionate force to kill that family member even where ‘harm’ is not ‘immediate’.56

14.36 The first case in which s 9AH was applied was DPP v Anthony Sherna.57 In that case, Sherna—the accused—strangled his de facto wife and led evidence of family violence, including economic and psychological abuse, inflicted upon him over a period of 18 years.58 Justice Beach rejected an application by the prosecution to take the issue of self-defence and defence of another away from the jury, even if such pleas may have been ‘weak’ and ‘tenuous’.59 Sherna was found guilty of manslaughter and sentenced to 14 years imprisonment with a non-parole period of 10 years.

Queensland

14.37 As identified in Chapter 13, the Evidence Act 1977 (Qld) s 132B provides that ‘relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed’ is admissible in criminal proceedings against a person for offences defined in Chapters 28 to 30 of the Criminal

54 Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1349 (R Hulls—Attorney-

General), 1350. 55 Explanatory Memorandum, Crimes (Homicide) Bill 2005 (Vic), 4. 56 P Priest, Defences to Homicide (2005) <www.vicbar.com.au/webdata/CLEFiles/Defences%20to%20

Homicide.pdf> at 22 January 2010, 8. 57 Director of Public Prosecutions (Vic) v Sherna [2009] VSC. 58 A forensic psychologist testified that Sherna showed signs of ‘battered woman syndrome’ including

chronic depression, low and decreasing self-esteem and learnt helplessness: I Munro, ‘Anthony Sherna Jailed for Strangling Abusive Partner’, The Age (Melbourne), 20 November 2009.

59 Director of Public Prosecutions (Vic) v Sherna [2009] VSC.


Code (Qld).60 However, the provision has been criticised as redundant because relevant evidence is, by definition, generally admissible.61

14.38 In their 2009 report to the Queensland Attorney-General, Homicide in Abusive Domestic Relationships: a Report on Defences, Professors Geraldine Mackenzie and Eric Colvin recommended that an evidentiary provision—based on the Crimes Act 1958 (Vic) s 9AH—be attached to their recommended partial defence.62 This recommendation was not implemented in the new defence of killing in an abusive domestic relationship in s 304B of the Criminal Code (Qld).

Provocation Model Criminal Code

14.39 In 1998, the MCCOC recommended that the partial defence of provocation should be abolished, and that:

Those considerations which currently provide a basis for the partial defence should be considered for their relevance to the determination of an appropriate sentence after conviction.63

14.40 In considering whether or not provocation should be abolished, the MCCOC noted that:

The balance of opinion sees provocation to operate in practice in a gender biased fashion. Although the courts have tinkered with the legal principles, formulations of the doctrine which reduce the suddenness requirement are artificial and contrary to its historical foundation. The theory underlying battered woman syndrome does not comfortably co-exist with that of provocation.

The real issue in deciding whether the partial defence of provocation should be retained is one of culpability—whether the defendant should be culpable for murder, or for the lesser crime of manslaughter ... [W]hile provocation in its modern setting is designed to afford a middle ground to better reflect criminal culpability, it falls significantly short of that goal by reason of its limited focus which inescapably gears the partial defence towards male patterns of aggression and loss of self-control (its origin) at the expense of the sanctity of human life.64

60 These relevantly include homicide offences, offences endangering life or health—for example, grievous

bodily harm, torture, wounding and dangerous operation of a vehicle—and assaults. 61 R v PAB [2006] QCA 212, [28]. See also, Victorian Law Reform Commission Defences to Homicide,

Options Paper (2003), 134–135. 62 G Mackenzie and E Colvin, Homicide in Abusive Relationships: A Report on Defences (2009), prepared

for the Attorney-General and Minister for Industrial Relations (Qld), 58–59. 63 Model Criminal Code Officers Committee—Standing Committee of Attorneys-General, Model Criminal

Code—Chapter 5, Fatal Offences Against the Person: Discussion Paper (1998), 107. 64 Ibid, 103.


State and territory legislation

Abolition of defence

14.41 Provocation has been abolished in Western Australia,65 Victoria,66 and Tasmania.67

14.42 The Law Reform Commission of Western Australia recommended that the defence be abolished, but only if the mandatory penalty of life imprisonment for murder was replaced with a presumptive sentence of life imprisonment.68 It expressed the view that there was no clear justification for retaining the defence of provocation except the continued existence of mandatory life imprisonment for murder.69

14.43 The Tasmanian Attorney-General in the Second Reading Speech of the Criminal Code Amendment (Abolition of Defence of Provocation) Bill 2003 also stated that provocation was an anachronism ‘now that the death penalty and mandatory life imprisonment have been removed’.70 A similar statement was made by the Victorian Attorney-General in the Second Reading Speech of the Crimes (Homicide) Bill 2005:

The courts developed the partial defence of provocation at a time when murder carried a mandatory death penalty. The partial defence is outdated now that provocation can simply be taken into account, if relevant, alongside a range of other factors in the sentencing process.71

14.44 A number of other reasons were advanced for the abolition of the defence by the Law Reform Commission of Western Australia, the VLRC and the Tasmanian Attorney-General.72 These included the following:

• The jury must take into account the personal characteristics and background of the accused when assessing the gravity of the provocation, but then the jury is expected to disregard these factors for the second stage of the test in assessing the power of self-control of an ordinary person.73 The ‘correct balance between subjective and objective factors is difficult to strike’.74

65 Criminal Law Amendment (Homicide) Act 2008 (WA) s 12. 66 Crimes (Homicide) Act 2005 (Vic). 67 Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas). 68 Law Reform Commission of Western Australia, Review of the Law of Homicide, Project 94 (2007),

Rec 29. 69 In Western Australia, a person who is guilty of murder must be sentenced to life imprisonment unless that

sentence would be clearly unjust given the circumstances of the offence and the person; and the person is unlikely to be a threat to the safety of the community when released from imprisonment in which case the person is liable to imprisonment for 20 years: Criminal Code Act Compilation 1913 (WA) s 279(4).

70 Tasmania, Parliamentary Debates, House of Assembly, 20 March 2003, 60 (J Jackson—Attorney General and Minister for Justice and Industrial Relations).

71 Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1349 (R Hulls—Attorney-General).

72 See also Office of the Director of Public Prosecutions (Tas), Annual Report 2000–01, 6 in which the DPP also raised concerns about the defence of provocation.

73 Law Reform Commission of Western Australia, Review of the Law of Homicide, Project 94 (2007), 207. 74 Ibid, 209.


• The defence of provocation creates two categories of intentional killing when the distinction ought to be between intentional killing and unintentional killing.75

• The moral basis of provocation is incompatible with contemporary community values and views on what is excusable behaviour: The continued existence of provocation as a separate partial defence to murder partly legitimates killings committed in anger. It suggests there are circumstances in which we, as a community, do not expect a person to control their impulses to kill or to seriously injure a person. This is of particular concern when this behaviour is in response to a person who is exercising his or her personal rights, for instance to leave a relationship or to start a new relationship with another person.76

• Retaining a partial defence of provocation also sends a message that the homicide victim must bear some of the blame for his or her own death. This can be deeply distressing for friends and family of homicide victims.77

• Provocation is and can be adequately considered as a factor during sentencing.78

• The defence of provocation is gender biased and unjust. The defence fails to recognise that men kill women in very different circumstances from those where women kill men. Men are motivated to kill their partners out of jealousy, and a need for control based on threats to leave and issues of infidelity whilst women kill their partners because of a history of family violence.79 Further: The ‘suddenness’ element of the defence is more reflective of male patterns of aggressive behaviour. The defence was not designed for women and it is argued that it is not an appropriate defence for those who fall into the ‘battered women syndrome.’80

• The defence of provocation can be subject to abuse.81

Retention of defence

14.45 Provocation remains a defence in NSW, Queensland, the ACT and the Northern Territory.

14.46 In NSW, provocation is available as a partial defence to murder.82 In 1997, the NSW Law Reform Commission (NSWLRC) recommended that the defence of

75 Ibid, 218. 76 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004), 56. 77 Ibid. 78 Tasmania, Parliamentary Debates, House of Assembly, 20 March 2003, 60 (J Jackson—Attorney

General and Minister for Justice and Industrial Relations). 79 Victorian Law Reform Commission, Defences to Homicide: Final Report, (2004), 29. 80 Tasmania, Parliamentary Debates, House of Assembly, 20 March 2003, 60 (J Jackson—Attorney

General and Minister for Justice and Industrial Relations). See also Law Reform Commission of Western Australia, Review of the Law of Homicide, Project 94 (2007), 214, 216 which refers to provocation being based on male behaviour and the gender inequality in the application of the defence to women who kill long-term abusive partners.

81 Tasmania, Parliamentary Debates, House of Assembly, 20 March 2003, 60 (J Jackson—Attorney General and Minister for Justice and Industrial Relations).

82 Crimes Act 1900 (NSW) s 23.


provocation be retained.83 It expressed the view that there are circumstances in which a person’s mental state is impaired by a loss of self control, thereby reducing the culpability of a person who kills; and not warranting that person being labelled a ‘murderer’:

A conviction of manslaughter ensures a greater likelihood that the community will understand and accept a reduced sentence which reflects a lesser degree of culpability.84

14.47 The NSWLRC considered the application of the defence of provocation in family violence circumstances. It acknowledged that concern is sometimes expressed that the defence of provocation is used inappropriately to excuse offenders who kill their partners because of sexual jealousy or possessiveness:

[T]here may be a risk that a particular accused will seek to rely on the defence of provocation to excuse an act of violence which was in fact premeditated and was committed in the context of a history of violence and domestic abuse. However, that risk hardly justifies abolishing the defence. To do so would exclude other, deserving cases from the reduction of murder to manslaughter by way of the defence of provocation and, in effect, would be to throw the baby out with the bathwater.85

14.48 The NSWLRC made a number of recommendations to reform the defence of provocation, none of which has been adopted. In particular, it recommended the abolition of the ‘ordinary person’ test with the result that:

women whose power to exercise self-control has been impaired by reason of a long history of abuse are not excluded from the defence through the imposition of some objective standard which does not take that factor into account in determining ‘ordinary’ powers of self-control. Under our reformulation, all factors which may affect a woman’s power of self-control, including a long history of being abused, are to be considered by the jury in arriving at their verdict.86

14.49 The NSWLRC also recommended that legislative amendments make it clear that the defence of provocation may apply to provocative conduct occurring outside the accused’s presence.87 It noted that this approach ensures

that the defence of provocation is not automatically excluded from cases where a woman kills her partner following incidents of abuse by that partner which are not witnessed personally by the woman, such as sexual and physical assaults on her children.88

14.50 In Queensland, the partial defence of provocation to murder is limited to circumstances in which the accused kills ‘in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool’.89 In 2008, the

83 New South Wales Law Reform Commission, Partial Defences to Murder: Provocation and Infanticide

(1997), Rec 1. 84 Ibid, [2.24]. 85 Ibid, [2.37]. 86 Ibid, [2.144]. 87 Ibid, [2.91]. 88 Ibid, [2.144] (citation omitted). 89 Criminal Code Act 1899 (Qld) s 304.


Queensland Law Reform Commission (QLRC) recommended that the partial defence should remain, given the ‘constraint of the [Queensland] Government’s stated intention to make no change to the existing penalty of mandatory life imprisonment for murder’.90 However, the QLRC recommended the following amendments to the defence:

• other than in circumstances of an ‘extreme and exceptional character’, the partial defence should not be based upon ‘words alone, or conduct consisting substantially of words’, or upon ‘the deceased’s choice about a relationship’; and

• the defendant should bear the onus of proof of the partial defence, on the balance of probabilities.91

14.51 On 12 September 2010, the Queensland Attorney-General, Cameron Dick, stated that the Queensland Government intends to introduce a Bill into Parliament in 2010 containing these amendments to the Criminal Code (Qld).92

14.52 Provocation is a partial defence in the ACT93 and the Northern Territory;94 and in each case the conduct of the deceased provoking the offender may have occurred immediately before the act or omission causing death or at any previous time.

14.53 In 2000, the Law Reform Committee of the Northern Territory recommended that the defence of provocation should be amended to abolish the requirement for the accused to have ‘acted on the sudden and before there was time for his passion to cool’.95 In 2006, the Northern Territory introduced a new provision dealing with the defence of provocation.96 The revised provision, currently in force, imposes an objective test as to whether the provocation was sufficient to have induced an ordinary person to have so far lost self control as to have formed an intent to kill or cause serious harm to the deceased.97 A person’s gender, cultural background or ethnicity is not relevant when applying this test of assessing the power of self control of a person. In the Second Reading Speech of the Criminal Reform Amendment Bill (No 2) 2006

90 Queensland Law Reform Commission, A Review of the Excuse of Accident and the Defence of

Provocation, Report 64 (2008), Rec 21–1. The QLRC expressed the view that, unless the penalty of mandatory life imprisonment for murder was replaced with that of presumptive life imprisonment—which would enable circumstances of provocation to be taken into account in sentencing—the partial defence of provocation should remain: Ibid, [21.177]

91 Ibid, Recs 21–2; 21–3; 21–5. As discussed below, the QLRC further recommended consideration of a separate defence for ‘battered persons’ in ‘seriously abusive’ relationships who kill the person who was violent towards him or her: Ibid, Rec 21–4.

92 C Dick (Queensland Attorney-General and Minister for Industrial Relations), ‘State Government to Amend Laws Relating to Accident, Provocation’ (Media Release, 12 September 2010).

93 Crimes Act 1900 (ACT) s 13. In the ACT, a person who is guilty of committing murder is liable to imprisonment for life but a court may impose a sentence for a stated term: Crimes (Sentencing) Act 2005 (ACT) s 32(1); Crimes Act 1900 (ACT) s 12.

94 Criminal Code (NT) s 158. In the Northern Territory, a person who is guilty of murder is liable to a mandatory term of imprisonment for life: s 157. A person who is guilty of manslaughter is liable to imprisonment for life but this penalty is not mandatory: s 161.

95 Northern Territory Law Reform Committee, Self Defence and Provocation (2000), 47. 96 Criminal Reform Amendment Act (No 2) 2006 (NT) ss 8, 17. 97 Criminal Code (NT) s 158(2).


the Attorney-General noted that the revised defence would address family violence issues:

The revised provision also removes the requirement for the defendant to have acted ‘on the sudden and before there was a time for his passion to cool’. This requirement has to date made the defence unavailable in cases where there has been a history of serious abuse inflicted on the defendant, which ultimately leads them into attacking their abuser. This is the situation in what is commonly referred to as ‘battered women’ cases.

The bill also clarifies that the defence is available in circumstances where the provocation is directed at someone other than the accused, for example towards children of the defendant. The government considers that this revised provision will reflect the best law on this defence.98

Overseas 14.54 On 8 December 2009 the defence of provocation was repealed in New Zealand. This followed two reports by the New Zealand Law Commission (NZLC) which recommended abolition of the partial defence—one published in 2001,99 and the other published in 2007.100 In the latter report, the NZLC specifically considered the effect of the defence of provocation on battered defendants. It concluded that:

For the majority of battered defendants, self defence will tactically offer a preferable alternative to provocation, because it results in an acquittal. … [P]rovocation is not benefiting battered defendants sufficiently to warrant its retention, and our review of case law confirms this.101

14.55 In contrast, the defence of provocation is available in England and Wales.102 In 2006, the United Kingdom Law Commission reviewed the defence of provocation and recommended that there be legislative reform to include circumstances in which the defendant acted in response to ‘fear of serious violence towards the defendant or another’.103 The Law Commission considered that this reform would be sufficient to meet the criticisms that the defence of provocation ‘makes no provision for fear of serious violence to reduce murder to manslaughter’104 and that it permits the reduction of the offence from murder to manslaughter in cases ‘where the provoked murder may have been little more than a reflection of the continuing cultural acceptability of men’s use of violence in anger’.105

98 Northern Territory, Parliamentary Debates, Legislative Assembly, 31 August 2006, 3021 (P Toyne—

Minister for Justice and Attorney-General). 99 New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered

Defendants (2001). 100 New Zealand Law Commission, The Partial Defence of Provocation, Report 98 (2007). This report

identified a number of fundamental flaws with the defence of provocation including that it was a defence biased in favour of heterosexual men: 48–49.

101 Ibid, 58. 102 Homicide Act 1957 (UK) s 3. 103 The Law Commission (UK), Murder, Manslaughter and Infanticide, Report 304 (2006), 78. 104 Ibid, 91. 105 Ibid. The defence of provocation is also available in Ireland, and in 2009, the Law Reform Commission

of Ireland accepted that the defence was unsatisfactory and made a number of recommendations concerning its reform: Law Reform Commission (Ireland), Defences in Criminal Law (2009), [7.23]–[7.35].


A separate partial defence of family violence Queensland

14.56 The Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Act 2010 (Qld) amended the Criminal Code (Qld) by inserting a new s 304B, which introduced a new partial defence to murder of ‘killing in an abusive domestic relationship’. Section 304B provides that murder will be reduced to manslaughter if:

• the accused unlawfully killed the deceased in circumstances that would constitute murder;

• the deceased has committed ‘serious acts of domestic violence’ against the accused in the course of an ‘abusive domestic relationship’;

• the accused believes that it is necessary to do the act or make the omission causing death, in order to preserve him or herself from death or grievous bodily harm; and

• the accused has reasonable grounds for that belief, having regard to the abusive domestic relationship and all the circumstances of the case.106

14.57 The terms ‘domestic violence’ and ‘domestic relationship’ are defined by reference to the Domestic and Family Violence Protection Act 1989 (Qld).107 The word ‘serious’ has been left deliberately undefined as a matter for the jury to determine in the circumstances of individual cases. The Queensland Attorney-General, Cameron Dick, stated in the Second Reading Speech that:

The use of the term ‘serious’ within the provision in relation to the level of domestic violence is used as a matter of emphasis to place the nature of the domestic violence in the Supreme Court murder trial in context. … All domestic violence must be condemned not only by government but in all our communities and in our homes. However, the use of the term ‘serious’ in the bill acts to create an appropriate threshold for the application of this partial defence to a charge of murder.108

14.58 Sections 304(4)–(7) confirm the relevance of the full circumstances of the relationship between the accused and the deceased. They provide that:

• a history of acts of serious domestic violence may include acts that appear minor or trivial when considered in isolation;

• the partial defence is available even if the killing was in response to a particular act of domestic violence committed by the deceased that would not—if the history of acts of serious domestic violence were disregarded—warrant the response;

106 Criminal Code (Qld) s 304B(1). 107 Ibid s 304B(2). 108 Queensland, Parliamentary Debates, Legislative Assembly, 26 November 2009, 3669 (C Dick—

Attorney-General and Minister for Industrial Relations), 3670.


• the partial defence is available even if the accused has sometimes committed acts of domestic violence in the relationship; and

• in assessing the reasonableness of the accused’s belief that his or her actions were necessary for self-preservation, regard may be had to circumstances including acts of the deceased that were not acts of domestic violence.

14.59 This partial defence only applies to murder, and the victim of family violence. Unlike self-defence, it is not available to persons acting in the defence of third persons who are family violence victims.109 In further contrast to self-defence, s 304B does not require the killing to occur in response to an assault by the deceased.

14.60 The Explanatory Notes to the Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Bill 2009 (Qld) indicate that the provision is intended to be additional rather than an alternative to other defences or excuses:

A victim of abuse charged with the murder of their abuser may wish to raise the complete defence of self-defence for the purposes of an acquittal, the partial defence of diminished responsibility or provocation to reduce a charge of murder to manslaughter, as well as the new partial defence depending on the circumstances of the case. It will then be a matter for the jury having regard to all the defences/excuses left to them to determine criminal responsibility.110

14.61 The Explanatory Notes express an intention to achieve ‘a balance between necessarily punishing those who would otherwise be guilty of murder, and providing some legal protections for victims of serious abuse’.111 The Explanatory Notes indicate that the provision is designed to respond to two key problems, namely:

• a lack of sentencing discretion in respect of victims of family violence who are convicted of murder, due to the sentencing regime of mandatory life imprisonment; and

• the limited effectiveness of existing defences for family violence victims who kill, due to the way in which it has been identified that they kill—for example, in non-confrontational circumstances, in response to an ongoing threat rather than a ‘one-off’ attack.112

14.62 Section 304B was enacted following an independent report commissioned by the Queensland Government,113 after a recommendation made by the QLRC that:

Consideration should be given, as a matter of priority, to the development of a separate defence for battered persons which reflects the best current knowledge about

109 As noted above, in Queensland, a mandatory life sentence applies if a person is convicted of murder,

unlike in several other jurisdictions where there is discretion in sentencing for murder. 110 Explanatory Notes, Criminal Code (Abusive Domestic Relationship Defence and Another Matter)

Amendment Bill (Qld) 2009, 4. 111 Ibid, 3. 112 Ibid, 1–2. 113 G Mackenzie and E Colvin, Homicide in Abusive Relationships: A Report on Defences (2009), prepared

for the Attorney-General and Minister for Industrial Relations (Qld), which recommended that the defence should be framed as a separate defence, applicable only where homicide occurs in the context of an abusive relationship, rather than as general amendment to the law of self-defence: [1.3.2.4].


the effects of a seriously abusive relationship on a battered person, ensuring that the defence is available to an adult or a child and is not gender-specific.114

14.63 The independent report, written by Mackenzie and Colvin, recommended against a new, complete defence for family violence victims who kill, or the amendment of existing self-defence provisions. The authors referred to stakeholders’ arguments that these approaches would risk protecting unmeritorious defendants, and that self-defence is adequate as a complete defence because it has led to acquittals in family violence cases. Mackenzie and Colvin concluded that:

In light of the diverse views expressed, we cannot recommend the reform of the general law of self-defence in this Report. While there may be deficiencies in the existing law and lessons to be learned from the experiences of other jurisdictions, a broader inquiry should be conducted before reform is initiated.

We have considered whether it would be appropriate to recommend the introduction of a separate version of self-defence, restricted to the victims of seriously abusive relationships. On balance, however, we have concluded that, at this time, there is insufficient support within the legal community for any complete defence outside the conditions of the existing defence of self-defence. We suggest that options be reconsidered when sufficient time has passed to permit assessment of the impact of the developments in other jurisdictions.115

14.64 Some recommendations of the independent report were not adopted in s 304B. These included recommendations that:

• the partial defence should be available to the victims of seriously abusive relationships and family members of the victim who are or have been parties to the domestic relationship in which the abuse has occurred and who act in defence of the victim;116

• the person claiming the partial defence need only believe that the killing was necessary for self-defence generally rather than specifically to preserve his or her life;117 and

• as mentioned above, the inclusion of an evidentiary provision, based on the Victorian model, providing guidance about the potential relevance of evidence of family violence.118

14.65 At the time of writing, s 304B had not been utilised. In the murder trial of R v Falls, the jury was directed on the section, however the accused was acquitted of murder on the basis of self-defence.119

114 Queensland Law Reform Commission, A Review of the Excuse of Accident and the Defence of

Provocation, Report 64 (2008), Rec 21–4. 115 G Mackenzie and E Colvin, Homicide in Abusive Relationships: A Report on Defences (2009), prepared

for the Attorney-General and Minister for Industrial Relations (Qld), [3.32]–[3.33]. 116 Ibid, [4.29]. 117 Ibid, [4.3]. Compare Explanatory Notes, Criminal Code (Abusive Domestic Relationship Defence and

Another Matter) Amendment Bill (Qld) 2009, 10. 118 G Mackenzie and E Colvin, Homicide in Abusive Relationships: A Report on Defences (2009), prepared

for the Attorney-General and Minister for Industrial Relations (Qld), [5.30]. 119 R v Falls (Unreported, Supreme Court of Queensland, Applegarth J, 2–3 June 2010).


14.66 Some commentators have criticised the Queensland approach. For example, Anthony Hopkins and Professor Patricia Easteal described the reform as ‘a compromised outcome, leaving battered women who kill in Queensland in an invidious position as compared to their interstate counterparts’.120 They argue that, while the section may reduce the number of murder convictions for persons who kill in response to serious family violence, it will not increase the prospect of acquittal for such persons, and may potentially undermine their claims to self-defence.121

14.67 The authors commented on the partial nature of the defence in the following terms:

In echo of the standard common law formulation of self-defence, s 304B requires that the defendant believed his or her act was necessary in self-preservation from death or grievous bodily harm. And, that the defendant had ‘reasonable grounds for the belief having regard to the abusive domestic relationship and all of the circumstances of the case’.

Under the common law, and the formulations of the test of self-defence in Victoria and Western Australia, the existence of such a belief warrants acquittal. This result is almost a self-evident consequence of the finding that the use of lethal force was reasonable and rational. By contrast, s 304B operates as a partial defence, reducing murder to manslaughter. Thus, despite the existence of reasonable grounds for a belief that it was necessary to use lethal force in self-defence, the killer remains subject to punishment—a clear though contradictory indication that their actions were neither reasonable nor rational.

The enactment of s 304B leaves untouched the test of self-defence in Queensland—the last remaining in Australia to require defensive action is taken in response to an assault. Where a battered woman seeks an acquittal, the reform does nothing to ensure that the reasonableness of her actions are assessed by reference to all of the situational and psychological circumstances in which she finds herself.122

14.68 Hopkins and Easteal also express concern that s 304B ‘substantially duplicates’ existing self-defence provisions in ss 271 and 272 of the Queensland Criminal Code. They comment that such duplication may create confusion in the minds of jurors about the relevance of family-violence related evidence where they are directed to consider both self-defence and s 304B:

Where a woman kills her batterer in circumstances where she is subject to a threat of serious violence, such as to constitute an assault, she may seek to rely upon both defences. In such a case, the same essential elements must be considered by the jury. That is, did she honestly believe that it was necessary to do as she did to preserve her life or protect herself from grievous bodily harm? And, did she have reasonable grounds for that belief?

Given the level of conformity, judicial directions may focus on the fact that s 304B expressly requires consideration of [an] ‘abusive relationship and all of the circumstances of the case’, whereas s 271 and s 272 do not. Whilst this distinction


Australia and Queensland’ (2010 - in press) 35(3) Alternative Law Journal. 121 Ibid. 122 Ibid.


may be insignificant as a matter of law, it may be a matter of great practical importance. Where a choice must be made, jurors may incline towards the view that a battered woman’s actions were only reasonable taking into account the violent antecedents. The result: a manslaughter verdict where otherwise a battered woman would have been entitled to an acquittal. Disturbingly, such an outcome would run counter to the overall objective of the reform, intended as it was to ensure that the Criminal Code (Qld) further embrace the experiences of those who kill after suffering prolonged abuse.123

Consideration of separate defences in other jurisdictions

Victoria

14.69 The VLRC, in its 2004 report on defences to homicide, recommended against the introduction of a separate defence for persons who kill in response to family violence. It concluded that reforms should focus on ‘ensuring that self-defence properly accommodates women’s experiences, rather than on creating a special defence for women who kill in response to family violence’. The Commission considered that clarification of self-defence and evidence law could ‘take adequate account of women’s experiences of violence’.124

Western Australia

14.70 Similarly, the Law Reform Commission of Western Australia in its 2007 Report, Review of the Law of Homicide, concluded that, rather than introduce a separate defence for victims of family violence, ‘it is preferable to amend the law so that it better accommodates the experiences of victims of domestic violence who kill’.125

New Zealand

14.71 The NZLC, in its 2001 report, Some Criminal Defences with Particular Reference to Battered Defendants, did not support the introduction of a specific defence for victims of family violence who kill or assault their abusers, because it was of the view that the availability of self-defence was adequate. The NZLC recognised that there may be some difficulties for battered persons demonstrating that their conduct was in self-defence, but was of the view that these could be addressed by reforming the provisions relating to self-defence.126

Summary of jurisdictional approaches 14.72 In summary, several jurisdictions have given substantial consideration to recognising family violence in the context of defences to homicide. A number of important statutory reforms have resulted from this, including:

• reforms to the defence of self-defence—including removal of the requirement for the threat to be imminent (Western Australia);

123 Ibid. 124 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004), [3.26]. 125 Law Reform Commission of Western Australia, Review of the Law of Homicide, Project 94 (2007), 289. 126 New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered

Defendants (2001), 29–30.


• reforms to the defence of provocation—including the removal for the requirement for the defendant to have ‘acted on the sudden and before there was a time for his passion to cool’ (Northern Territory), and removal of the requirement for the provocative conduct of the deceased to have occurred immediately prior to the act or omission causing death (for example, NSW);

• abolition of the defence of provocation in part because of its unsuitability for female victims of family violence (Victoria, Western Australia, Tasmania);

• expanding self-defence to take family violence into account, including express provision for the leading of evidence about family violence (Victoria); and

• creating a new defence of family violence (Queensland).

14.73 With the exception of the Queensland legislation, most reforms have not introduced a separate defence to accommodate victims of family violence.

Submissions and consultations 14.74 In the Consultation Paper the Commissions proposed that state and territory criminal legislation should:

• provide defences to homicide which accommodate the experiences of family violence victims who kill, recognising the dynamics and features of family violence;127 and

• expressly allow defendants to lead evidence about family violence in the context of a defence to homicide. The Commissions noted that s 9AH of the Crimes Act 1958 (Vic) is an instructive model in this regard.128

14.75 More generally, the Commissions sought stakeholder views on the adequacy of current homicide defences in the family violence context, and on the preferable means of recognising family violence as a defence to homicide.129

14.76 The majority of stakeholders responding to these issues strongly supported the principle of recognition—namely, that the nature and dynamics of family violence should be recognised in homicide defences and supporting evidentiary provisions. However, stakeholders were divided about the appropriate form of recognition.

Recognising the nature and dynamics of family violence in homicide defences

‘In-principle’ recognition of family violence in homicide defences

14.77 Submissions responding to the proposal that jurisdictions should provide defences to homicide, which accommodate the experiences of family violence victims

127 Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence:

Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Proposal 7–4.

128 Ibid, Proposal 7–5. See also G Mackenzie and E Colvin, Homicide in Abusive Relationships: A Report on Defences (2009), prepared for the Attorney-General and Minister for Industrial Relations (Qld), [5.30].

129 Consultation Paper, Questions 7–10, 7–11.


who kill, strongly supported the principle of recognition of the dynamics of family violence.130 The majority of submissions did not advance reasons for their positions or provide further comments as to detail. Two submissions, however, emphasised the importance of a nationally consistent approach to recognition.131 One legal service provider commented that any form of recognition should not result in the differential treatment of killings in response to family violence, and those in response to other forms of violence.132

14.78 Professor Julie Stubbs submitted that homicide defences should not be treated in isolation, and any forms of recognition should also include evidentiary rules and sentencing law and policy. Stubbs further submitted that any consideration of defences should include an examination of their use or potential use by family violence offenders who are charged with homicide offences.133

Adequacy of current homicide defences

14.79 Submissions and consultations indicated that, on balance, stakeholders considered that current approaches to homicide defences are inadequate.134 Stakeholders expressed various concerns about individual jurisdictional approaches and issues of general application including:

• the absence of national consistency in approaches to defences;135

130 Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010, National Legal Aid,

Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; S Bronitt, ‘The Rules of Recent Complaint: Rape Myths and the Legal Construction of the “Reasonable” Rape Victim’ in P Easteal (ed) Balancing the Scales: Rape, Law Reform and Australian Culture (1998) ; P Easteal and A Hopkins, Submission FV 36, 12 May 2010. See also: S Bronitt, ‘The Rules of Recent Complaint: Rape Myths and the Legal Construction of the “Reasonable” Rape Victim’ in P Easteal (ed) Balancing the Scales: Rape, Law Reform and Australian Culture (1998).

131 Confidential, Submission FV 171, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

132 Women’s Legal Service Queensland, Submission FV 185, 25 June 2010. See also J Stubbs, Submission FV 186, 25 June 2010, who made the same point in respect of preferable forms of recognition.

133 J Stubbs, Submission FV 186, 25 June 2010. See also Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

134 Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; A Cannon, Submission FV 137, 23 June 2010; Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010; P Easteal and A Hopkins, Submission FV 36, 12 May 2010.

135 Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.


• ‘unintended consequences’ associated with the use of defensive homicide provisions in Victoria—in particular their use by persons who have committed family violence against the deceased;136

• aspects of Queensland laws and sentencing policy, including—the existence of mandatory life sentencing for murder; the partial nature of the defence in the Criminal Code s 304B; the risk that s 304B may be misapplied by juries because it ‘substantially duplicates’ the existing self-defence provisions in the Criminal Code ss 271–272; and the requirement in ss 271–272 that actions taken in self-defence must be in response to an assault;137

• the Western Australian reforms to self-defence have primarily focused on the doctrinal content of the law and, in doing so, have not directly addressed issues of application;138 and

• the continued existence of provocation defences in some jurisdictions.139

Forms of recognition.

14.80 There was divergence in stakeholder views about the preferable form of recognition of the dynamics of family violence in homicide defences.

14.81 The majority of stakeholders commenting on this issue supported self-defence as the basis for recognition,140 however there was division as to whether such recognition should occur within existing self-defence provisions of general application, or whether a specific family-violence related form of self-defence is necessary. Three stakeholders supported a generally applicable formulation of self-defence that encapsulates the social context of homicides, including circumstances of family violence.141 The

136 Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

See also Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010 which referred to concerns about recent Victorian cases on this issue, including R v Middendorp [2010] VSC 202.

137 A Hopkins and P Easteal, ‘Walking in Her Shoes: Battered Women who Kill in Victoria, Western Australia and Queensland’ (2010 - in press) 35(3) Alternative Law Journal. See also Women’s Legal Service Queensland, Submission FV 185, 25 June 2010. Compare Queensland Government, Submission FV 229, 14 July 2010.

138 P Easteal and A Hopkins, Submission FV 36, 12 May 2010, citing A Hopkins and P Easteal, ‘Walking in Her Shoes: Battered Women who Kill in Victoria, Western Australia and Queensland’ (2010 - in press) 35(3) Alternative Law Journal. See also National Legal Aid, Submission FV 232, 15 July 2010, which referred to the views of Legal Aid Western Australia (LA WA). LA WA generally supports the recommendations of the Law Reform Commission on Western Australia on this issue in Law Reform Commission of Western Australia, Review of the Law of Homicide, Project 94 (2007) referred to above.

139 Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010. See also A Cannon, Submission FV 137, 23 June 2010, who commented generally that a reform of homicide laws and defences was necessary in South Australia.

140 National Legal Aid, Submission FV 232, 15 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

141 National Legal Aid, Submission FV 232, 15 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.


predominant basis for this view was equality in the treatment of family violence victims charged with homicide—namely, that ‘family violence victims should not be seen in an atypical context’.142 Hopkins and Easteal further commented that self-defence appropriately recognises that killings are ‘rational or reasonable’ responses to serious threats, rather than products of ‘the extraordinary psychology of battered women’.143

14.82 In their comparison of the legislative reforms to self-defence in Victoria, Queensland and Western Australia, Hopkins and Easteal concluded that the Victorian reforms have

gone furthest to ensure engagement with the experience of battered women. Despite retaining the common law formulation of self-defence, those amendments put beyond doubt that reasonableness must be considered by reference to [the victim’s] full situational and psychological predicament. 144

14.83 Other stakeholders expressly supported the Victorian reforms as a basis for recognition.145

14.84 The NSW Office of the Director of Public Prosecutions (NSW ODPP) favoured recognition of family violence within existing self-defence provisions of general application, or as a family-violence specific partial defence in the nature of provocation, without expressing a firm view on the preferred option:

Because family violence is such an insidious and often long experienced phenomenon, and the effects of it can make it very difficult for the victim to speak freely about it, there is a good argument for developing specific rules for it to be available either as a full defence (within the self-defence part of the Crimes Act) or partial defence to murder (like provocation). Provocation in our experience is very difficult to explain to a jury because of the subjective/ordinary person test, and for this reason we submit it could be accommodated separately from the general partial defence of provocation, but having the same sort of rationale.146

14.85 Several stakeholders supported a holistic approach to homicide defences in the family violence context—incorporating revisions of defences, sentencing and evidence laws, and ongoing judicial and legal professional education about the dynamics of

142 J Stubbs, Submission FV 186, 25 June 2010. See also Women’s Legal Service Queensland, Submission

FV 185, 25 June 2010. 143 P Easteal and A Hopkins, Submission FV 36, 12 May 2010, citing A Hopkins and P Easteal, ‘Walking in

Her Shoes: Battered Women who Kill in Victoria, Western Australia and Queensland’ (2010 - in press) 35(3) Alternative Law Journal.

144 P Easteal and A Hopkins, Submission FV 36, 12 May 2010. 145 Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Peninsula Community Legal

Centre, Submission FV 174, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

146 Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.


family violence.147 The No To Violence Male Family Violence Prevention Association further expressed a preference for a nationally consistent approach to defences.148

14.86 Other stakeholders favoured a separate family-violence related defence, but did not advance a firm view on the form it should take.149 Some stakeholders submitted that it was too early to assess the impact of recent reforms—in particular the partial defence of killing in an abusive domestic relationship in the Queensland Criminal Code s 304B—and identified a need for ongoing monitoring and future reviews of their operation in practice.150

Leading evidence of family violence for the purposes of homicide defences

14.87 Stakeholders unanimously supported the Commissions’ proposal for the enactment of legislative guidance about the potential admissibility of family-violence related evidence in the context of homicide defences.151 The majority of submissions supported provisions along the lines of the Crimes Act 1958 (Vic) s 9AH without elaboration.152 Hopkins and Easteal commented that such a provision would assist juries to comprehend ‘“what it must really be like to live in a situation of ongoing violence” and why her ultimate response was truly reasonable’.153

147 J Stubbs, Submission FV 186, 25 June 2010; Domestic Violence Victoria, Federation of Community

Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

148 No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010. 149 Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Victims of Crime

Assistance League Inc NSW, Submission FV 23, 23 February 2010. 150 Confidential, Submission FV 190, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June

2010. See also Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010 and Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010, which referred to the current review of the Victorian defensive homicide and associated provisions.

151 Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; N Ross, Submission FV 129, 21 June 2010; P Easteal and A Hopkins, Submission FV 36, 12 May 2010. See also A Cannon, Submission FV 137, 23 June 2010 who commented generally about the relevance of family-violence related circumstances to homicide defences, and the need for evidence of family violence to be admissible in this context.

152 Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; N Ross, Submission FV 129, 21 June 2010.

153 P Easteal and A Hopkins, Submission FV 36, 12 May 2010 citing the submission of Dr Rebecca Bradfield to the VLRC Inquiry into Defences To Homicide: Victorian Law Reform Commission, Defences to Homicide: Final Report (2004), [4.18].


14.88 The Magistrates’ Court and Children’s Court of Victoria suggested that jurisdictions considering enacting provisions in the nature of the Crimes Act 1958 (Vic) s 9AH should consider concerns raised in Victoria in relation to the use of the provision by defendants who have committed family violence against the deceased and who seek to rely upon defensive homicide.154

Commissions’ views 14.89 The Commissions have taken a high-level approach to the issues raised in this part, and have focused on the identification of relevant considerations and guiding principles for recognising the dynamics of family violence in homicide defences. The Commissions do not make recommendations about specific forms of defences or individual provisions in state and territory criminal legislation. In taking this approach, the Commissions acknowledge that:

• state and territory governments and law reform agencies have given substantial consideration to homicide defences in the family violence context;

• jurisdictions have taken divergent approaches to accommodating the dynamics of family violence in their respective homicide defences;

• in some cases, variations reflect different approaches to broader matters of criminal justice policy extending beyond the Commissions’ Terms of Reference—for example, mandatory sentencing regimes;

• there is an insufficient evidence base upon which to evaluate the operation of recent reforms in some jurisdictions because they have not yet been utilised or utilised only to a limited extent; and

• individual jurisdictions are best placed to review the operation of specific provisions, within the broader context of their respective criminal justice policies.

14.90 However, the Commissions identify several matters that should be taken into account in ensuring that the dynamics of family violence are accommodated in homicide defences. These matters—which are discussed below—are directed towards:

• ensuring that homicide defences promote substantive equality in the treatment of persons who kill in response to family violence and those who kill in response to other forms of violence;

• addressing technical limitations within existing homicide defences to recognise the full range of situational and psychological circumstances associated with family violence; and

• ensuring that relevant homicide defences are applied consistently in individual cases involving persons who kill in response to family violence.

154 Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010. The Courts

referred to R v Middendorp [2010] VSC 202 and Director of Public Prosecutions (Vic) v Sherna (No 2) [2009] VSC 526.


Recognising the nature and dynamics of family violence in homicide defences

14.91 The Commissions’ view is that jurisdictions should ensure that their defences to homicide accommodate the experiences of family violence victims who kill. A common theme throughout this Inquiry has been that legal frameworks should recognise the nature and dynamics of family violence—including its impact upon victims. In the Commissions’ view, such recognition must include victims’ responses to violence. The Commissions concur that defences must recognise that:

Contemporary research on the actions of victims of abuse who kill their abusers … demonstrates they are usually motivated by fear, desperation and a belief that there is no other viable way of escaping the danger. The option of leaving the relationship is often seen as an unrealistic option; research indicates that persons who suffer violence may perceive a lack of alternatives. The history of abuse in the relationship can allow a person who has suffered violence to read cues and note changes in the abuser’s behaviour which signal the onset of escalating violence.

Decisive action for self-preservation can then be taken before the abuser is in a position to physically overpower them; that action carried out with no loss of self-control and without a deficiency in cognitive processes.

The use of violence against the abuser may be reasonable under the circumstances as the person who has suffered prolonged abuse perceives them to be, but to an ordinary person may be judged as unnecessary or excessive. Even though there may be a history of extensive abuse, because the immediate threat may be modest (viewed in isolation) the hyper-vigilance typical of a battered person may result in a killing that is not proportionate to the threat. 155

14.92 For the reasons identified above, the Commissions do not recommend a particular approach as to how each jurisdiction should ensure the recognition of family violence as a defence to homicide. However, the following considerations should be taken into account in the framing of any defences.

Relevant considerations in framing defences

Equality of legal responses to family violence and non-familial violence

14.93 The Commissions consider that criminal defences should not recognise the circumstances of family violence victims in an ‘atypical context’, or typecast the reactions of family violence victims who kill as the product of ‘extraordinary psychology’.156 There is substantial force in stakeholders’ arguments that separate, family-violence specific defences may result in the differential treatment of persons who have killed in response to family violence, compared with those who have killed in response to non-familial violence. To this end, it is preferable for family-violence related circumstances to be integrated into existing defences of general application. In the Commissions’ view, existing defences—in particular self-defence—are doctrinally

155 Explanatory Notes, Criminal Code (Abusive Domestic Relationship Defence and Another Matter)

Amendment Bill (Qld) 2009, 2. 156 J Stubbs and J Tolmie, ‘Falling Short of the Challenge? A Comparative Assessment of the Australian Use

of Expert Evidence on Battered Woman Syndrome’(1997) 23 Melbourne University Law Review 709, 730.


capable of accommodating the diverse situational and psychological circumstances of family violence victims.

14.94 Consistent with the Commissions views on the creation of specific family violence offences, the Commissions have reservations about creating discrete defences to address problems associated with the practical application of general defences, and recommend a cautious approach. The Commissions consider that it is preferable to focus on improving the application and effectiveness of existing defences in the family violence context through legislative clarification and guidance where necessary, and judicial and legal professional education and training. These matters are discussed further below.

14.95 In the Commissions’ view, the circumstances of family violence ought to be recognised in both complete and partial defences, given the different purposes served by each form of defence. In recognising circumstances of family violence for the purposes of an acquittal, complete defences are intended to remove all criminal liability associated with fatal responses to family violence. However, partial defences recognise the circumstances of family violence only for the purposes of avoiding a murder conviction. An exclusive focus on partial defences falls short of accommodating the circumstances of family violence because it ‘leaves untouched’ limitations in complete defences.157

Addressing technical limitations in existing defences

14.96 Given the disparate and jurisdiction-specific nature of existing approaches to homicide defences, the Commissions recommend that individual jurisdictions review their existing defences with a view to assessing the extent to which they accommodate the experiences of family violence victims who kill. Such reviews should encompass:

• defences specific to family violence victims, as well as those of general application that may apply to victims of family violence; and

• both complete and partial defences, recognising the discrete purposes that each form of defence is intended to serve.

14.97 The Commissions recommend that reviews should consider:

• how the relevant defences are being used—including in charge negotiations—by whom and with what results; and

• the impact of rules of evidence and sentencing law and policy on the operation of defences.


Australia and Queensland’ (2010 - in press) 35(3) Alternative Law Journal.


14.98 To accommodate recent reforms in some jurisdictions, the Commissions recommend that reviews are conducted after relevant provisions have been in force for five years.158 These matters are the subject of Recommendation 14–2 below.

The consistent application of defences

14.99 The Commissions acknowledge that a focus on the doctrinal content of defences is insufficient to ensure that the experiences of family violence victims who kill are accommodated in practice. Continuing legal professional and judicial education is essential to ensuring that judges and lawyers practising in criminal law understand the nature and dynamics of family violence, and how evidence of family violence may be relevant to criminal defences.

14.100 In Chapter 31, the Commissions endorse the recommendation of the National Council to Reduce Violence Against Women and their Children for the production of a national family violence bench book, in consultation with states and territories, and as part of a national professional development program for judicial officers on family violence.159 In addition to their recommendation about the inclusion of guidance on sentencing in the family violence context, and the admission of family-violence related evidence,160 such a bench book should specifically address the application of defences to homicide where victims of family violence are charged with homicide offences. This is the subject of Recommendation 14–3 below.

14.101 The Commissions further endorse the recommendations of the VLRC in its 2004 report on defences to homicide, that bodies offering continuing professional development should include sessions on family violence in the criminal law.161 In Chapter 31, the Commissions recommend a national audit of family violence training conducted by government and non-government agencies. Such an audit should cover criminal law training, including in relation to homicide defences and criminal defences more generally.

14.102 The Commissions note that matters of legal professional education in relation to family violence in Victoria are currently under consideration in the Victorian Government review of defensive homicide.162 The outcomes of this review may contribute to the recommended national audit.

National consistency

14.103 The Commissions support the development of a consistent or harmonious approach by the states and territories to the recognition of family violence in defences

158 This recommendation is framed in similar terms to that of the VLRC in respect of excessive self-

defence/defensive homicide: Victorian Law Reform Commission, Defences to Homicide: Final Report (2004), Rec 10. The Commissions agree with the VLRC’s statement that the five-year period is intended as a guide and ‘may need to be reconsidered in light of the number of [relevant] cases ... over this period’, [3.112].

159 Rec 31–2. 160 Rec 13–1. 161 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004), Rec 35. 162 Department of Justice, Victoria Review of the Offence of Defensive Homicide Discussion Paper, August

2010, [318]–[343].


to homicide. The Commissions consider that there is no principled justification for the differential treatment of victims of family violence solely on the basis of jurisdiction. While acknowledging that states and territories have taken different approaches to homicide defences in their respective jurisdictions, the Commissions consider that there is merit in national collaboration to identify strategies to improve inter-jurisdictional consistency. National consideration of this matter may also facilitate the sharing of information, experiences and expertise between jurisdictions about approaches to defences.

14.104 The Commissions consider that the SCAG MCLOC would be a suitable body to undertake such a task, in light of its substantial work on homicide defences in the Model Criminal Code. Consideration of this matter through the MCLOC would further provide an opportunity to identify approaches or model provisions that do not appear to have uniform support based upon jurisdictions’ implementation responses, and which may require reconsideration. This may include, for example, further discussion of the abolition of provocation and excessive self-defence, and the appropriate elements of self-defence. The issue of national consistency in homicide defences in the family violence context is addressed in Recommendation 14–4 below.

Leading evidence of family violence in homicide defences

14.105 The Commissions maintain their view expressed in the Consultation Paper that state and territory criminal legislation should provide express guidance about the potential relevance of family-violence related evidence in the context of homicide defences, in similar terms to s 9AH of the Crimes Act 1958 (Vic). This is the subject of Recommendation 14–5 below.

14.106 The Commissions consider that there is considerable merit in focusing attention on the potential relevance of such evidence in homicide defences, given its importance in these circumstances. The Commissions endorse the views of the VLRC that such a provision would assist in avoiding ‘unnecessary arguments concerning ... relevance and ensure the range of factors which may be necessary to represent the reality of the accused’s situation are readily identified’.163

14.107 The Commissions acknowledge the concerns identified by some stakeholders that a provision in the nature of s 9AH of the Crimes Act 1958 (Vic) may be relied upon by accused persons who have committed acts of family violence against the deceased and who are raising self-defence or defensive homicide. However, the Commissions note that the provision does not extend or otherwise alter the general rules concerning the admissibility of family-violence related evidence. In the Commissions’ view, the relevance of family-violence related evidence in these circumstances is appropriately determined by the court in individual cases. Similarly, the weight afforded to such evidence is a matter for the trier of fact in individual cases.

163 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004), [4.29].


Leading evidence of family violence in defences to non-fatal offences against the person

14.108 The Commissions have focused on defences to homicide due to the gravity of the consequences for family violence victims whose situational and psychological circumstances are not adequately taken into account. The Commissions acknowledge, however, that family violence victims may not always respond to violence using fatal means, or may commit offences under duress or in circumstances that may attract a defence based upon an altered state of mind as a consequence of family violence.

14.109 This raises the question of whether legislative guidance about the potential admissibility of family-violence related evidence is necessary in the context of other defences, including defences to non-fatal offences against the person, attempted fatal offences and non-violent offences committed as a consequence of family violence. The Commissions consider that state and territory governments should review whether criminal legislation should expressly allow defendants to lead evidence about family violence in the context of defences to non-fatal offences against the person.

Recommendation 14–1 State and territory criminal legislation should ensure that defences to homicide accommodate the experiences of family violence victims who kill, recognising the dynamics and features of family violence.

Recommendation 14–2 State and territory governments should review their defences to homicide relevant to family violence victims who kill. Such reviews should:

(a) cover defences specific to victims of family violence as well as those of general application that may apply to victims of family violence;

(b) cover both complete and partial defences;

(c) be conducted as soon as practicable after the relevant provisions have been in force for five years;

(d) include investigations of the following matters:

(i) how the relevant defences are being used—including in charge negotiations—by whom, and with what results; and

(ii) the impact of rules of evidence and sentencing laws and policies on the operation of defences; and

(e) report publicly on their findings.

Recommendation 14–3 The national family violence bench book (see Rec 31–2) should include a section that provides guidance on the operation of defences to homicide where a victim of family violence kills the person who was violent towards him or her.


Recommendation 14–4 The Model Criminal Law Officers’ Committee of the Standing Committee of Attorneys-General—or another appropriate national body—should investigate strategies to improve the consistency of approaches to recognising the dynamics of family violence in homicide defences in state and territory criminal laws.

Recommendation 14–5 State and territory criminal legislation should provide guidance about the potential relevance of family-violence related evidence in the context of a defence to homicide. Section 9AH of the Crimes Act 1958 (Vic) is an instructive model in this regard.

Recognising family relationships in criminal law responses to family violence 14.110 In Chapter 7, the Commissions consider the categories of relationships covered by state and territory family violence legislation.164 A further issue is how—if at all—a family relationship should be defined where it is prescribed as an element of an offence, defence or as a sentencing factor in the family violence context. In particular, this raises the following matters:

• whether it is necessary or appropriate to define a family relationship between the offender and the victim for the purposes of criminal law responses to family violence;

• if so—the categories of relationships that should be recognised in any criminal law definitions; and

• whether it is necessary or feasible to align the categories of relationships recognised in criminal law definitions with those recognised in family violence legislation.

14.111 As noted in Chapter 13, the Commissions consider this issue in the Consultation Paper in the context of potential family-violence related offences.165 However, the Commissions consider that it is necessary to consider the issue in a broader context, given that state and territory criminal laws have variously prescribed a family relationship between the offender and the victim as an element of aggravated offences,166 and an element of some defences.167 At common law, sentencing courts have also recognised a family relationship between the offender and the victim as an aggravating factor in appropriate cases.168

164 Rec 7–6. 165 Consultation Paper, Question 7–2. 166 Criminal Code Act Compilation 1913 (WA); Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g). 167 Crimes Act 1958 (Vic) s 9AD and Criminal Code (Qld) s 304B. 168 See, eg, R v MFP [2001] VSCA and the discussion of this case in Ch 13.


14.112 In considering this issue, however, the Commissions reiterate views expressed in Chapter 13 that the existence of a family relationship between the offender and the victim should not form the sole basis of aggravation in relation to offences or sentencing, or the sole basis for any family-violence specific criminal defences. Rather, the Commissions tend to the view that criminal laws must target the underlying dynamics of family violence.169

Current approaches to recognising family relationships in criminal laws State and territory criminal laws

14.113 This part of the chapter considers the categories of family relationships currently incorporated in defences, aggravated offences and sentencing factors in state and territory criminal laws.

Homicide defences

14.114 The Victorian Crimes Act 1958 defines a ‘family member’ of the accused person for the purposes of defences to murder, defensive homicide or manslaughter in circumstances of family violence. Section 9AH defines a ‘family member’ as including:

• a person who is or has been married to the accused person, or who has had an intimate personal relationship with the accused person;

• a person who has been the father, mother, step-father or step-mother of the accused person;

• a child who normally or regularly resides with the accused person; • a guardian of the accused person; or

• another person who is or has ordinarily been a household member with the accused person.170

14.115 A key difference between the above criminal law definition and the definition of the same term in the Family Violence Protection Act 2008 (Vic) s 8 is that the criminal law definition is drafted in inclusive terms—whereas the definition in the family violence legislation is exhaustive. In addition—and potentially as a consequence of its exhaustive nature—the definition in the Family Violence Protection Act makes express reference to spouses, domestic partners and relatives, which are defined terms in the Act.171 The Family Violence Protection Act definition also includes a functional element, encompassing any other person whom the relevant person reasonably regards as being ‘like a family member’, having regard to nine enumerated factors.172

14.116 In Queensland, a ‘domestic relationship’ is an element of the defence of killing in an abusive domestic relationship in Criminal Code s 304B. The term

169 See Ch 13. 170 Crimes Act 1958 (Vic) s 9AH(4). 171 Family Violence Protection Act 2008 (Vic) ss 8(1), 9, 10. 172 Ibid s 8(3).


‘domestic relationship’ is defined by reference to the Domestic and Family Violence Protection Act 1989 (Qld) s 11A.173 The latter section defines a ‘domestic relationship’ as comprising a spousal relationship, intimate personal relationship, family relationship or an informal care relationship—as defined in the Act. Accordingly, the definition in both civil and criminal laws is exhaustive in nature.

14.117 The term ‘domestic relationship’ is referred to but not defined in the Evidence Act 1977 (Qld) s 132B, which confirms the admissibility of evidence of a domestic relationship between the offender and the victim, where such evidence is relevant to defending certain charges of offences against a person.174

Aggravated offences

14.118 The criminal legislation of South Australia and Western Australia makes reference to certain family relationships between the offender and the victim as elements of aggravated offences. The relevant family relationships are defined exhaustively in both jurisdictions. In South Australia, the Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g) lists the following relationships between the offender and the victim as circumstances of aggravation:

• spouses—defined as persons who are legally married;175

• domestic partners—defined by reference to the Family Relationships Act 1975 (SA);176 and

• a child of whom the offender or his or her present or former spouse or domestic partner has custody as a parent or guardian; or who regularly resides with the aforementioned persons.177

14.119 The Intervention Orders (Prevention of Abuse) Act 2009 (SA) deems that two persons will be in a relationship for the purposes of identifying ‘domestic abuse’ in a broader range of circumstances than the criminal legislation. These include marriage, domestic partners, children, relatives, Indigenous kinship relationships or other culturally recognised family groups and unpaid care relationships.178

14.120 The Western Australian criminal legislation provides for aggravated offences against the person where the offender is in a ‘family and domestic relationship’ with the victim.179 The term ‘family and domestic relationship’ is defined by reference to the Restraining Orders Act 1997 (WA) s 4. The latter provision defines the term as a

173 Criminal Code (Qld) s 304B(2). 174 See Chapters 28 to 30 of the Criminal Code (Qld) which include offences relating to homicide,

endangerment of life or health and assaults. 175 Criminal Law Consolidation Act 1935 (SA) s 5AA. 176 The Family Relationships Act 1975 (SA) s 11A defines ‘domestic partners’ as persons living together in a

close personal relationship—as defined in the Act—for a prescribed period, or who have had a child together.

177 A ‘child’ is defined in the Criminal Law Consolidation Act 1935 (SA) s 5AA as a person under the age of 18 years. The terms ‘parent’ and ‘guardian’ are not defined in the Act.

178 Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8(8). 179 Criminal Code Act Compilation 1913 (WA) s 221.


relationship between two persons who are or were in marital, de facto, intimate personal or other personal relationships; persons who are related to each other; and children who reside or stay with, or who are under the parental care or guardianship, of the other.

Sentencing factors

14.121 As noted in Chapter 13, the sentencing legislation of states and territories does not expressly prescribe a family relationship between the offender and the victim as a sentencing factor. However, at common law, the existence of a family or domestic relationship between the offender and victim is relevant to an assessment of the gravity of an offence.180 In particular, in some jurisdictions the commission of an offence in a domestic context cannot be a mitigating factor,181 and may be an aggravating factor in appropriate cases. For example, as noted in Chapter 13, in R v MFP, the Victorian Court of Appeal upheld the finding of the trial judge that the commission of an offence against a marital partner in ‘a domestic context’ was an aggravating circumstance.182 Sentencing courts have made similar findings in respect of offences committed against de facto or former de facto partners,183 children184 and step-children185—particularly in circumstances involving a breach of trust.186 However, the boundaries of the concept of a family relationship or the ‘domestic context’ for the purposes of common law sentencing factors do not appear to have been comprehensively delineated.

Criminal law provisions referring to the dynamics of family violence

14.122 As canvassed in Chapter 13, other provisions in state and territory criminal laws refer exclusively to the dynamics of the relationship between the accused person and the victim, without express reference to familial connection. In particular, these include aggravated offences187 and aggravating sentencing factors188 in respect of offences committed in abuse of a relationship of trust or authority between the offender and the victim.

United States

14.123 By way of comparison, as noted in Chapter 13, several US states recognise aggravated forms of offences against the person where they are committed against persons with whom the offender is in a defined family or domestic relationship. Most provisions define family or domestic relationships in exclusive terms, by reference to categories of relationships. For example, common categories of relationships recognised in the six illustrative US jurisdictions identified in Chapter 13 include:189

180 See, eg, R v Kibble [2002] VSC 52, [57], [64]–[66]. 181 See, eg, Raczkowski v The Queen [2008] NSWCCA . 182 R v MFP [2001] VSCA , [20]. 183 See, eg, R v Kibble [2002] VSC 52. 184 See, eg, R v CSG [1998] VSCA 117. 185 See, eg, R v VZ [1998] 7 VR 693. 186 Ibid, 699. 187 Criminal Law Consolidation Act 1935 (SA), ss 5AA(1)(a) and (i). 188 Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(d),(ea),(eb),(k). 189 These jurisdictions are: Georgia, Mississippi, Missouri, Montana, Nevada and Ohio.


• spouses and former spouses;190

• adults who have a child in common irrespective of whether they have been married or have resided together;191

• romantic, dating or intimate personal relationships;192

• parents, children and siblings—including relationships created by adoption or marriage;193

• persons related by blood or consanguinity, marriage or affinity to the offender;194 and

• household members or persons residing together or who have resided together.195

14.124 There is a substantial degree of alignment between criminal and civil definitions in the abovementioned illustrative jurisdictions.196 In addition, the federal offences in the Violence Against Women Act apply to offences committed against spousal, intimate or dating partners as defined in the Act, and—in respect of offences involving the crossing of state boundaries to breach protection orders—persons who are the subject of protection orders under the relevant state or tribal legislation.197

Submissions and consultations 14.125 In the Consultation Paper the Commissions sought stakeholder views on the types of family relationships that ought to be recognised for the purposes of any potential aggravated offences, or discrete categories of family-violence related offences that do not attract higher maximum penalties, if such measures were to be implemented.198 On balance, stakeholders expressed a preference for the inclusion of a broad range of family relationships, in similar terms to family violence legislation.199 A

190 Georgia Code § 16-5-20(d); Mississippi Code § 97-3-7(3),(4); Missouri Annotated Statutes § 455.101(5);

Montana Code § 45-5-206(2); Nevada Revised Statutes § 33.018; Ohio Revised Code § 2919.25(F). 191 Georgia Code § 16-5-20(d); Mississippi Code § 97-3-7(3),(4); Missouri Annotated Statutes § 455.101(5);

Montana Code § 45-5-206(2). 192 Mississippi Code § 97-3-7(3),(4); Missouri Annotated Statutes § 455.101(5); Montana Code § 45-5-

206(2); Nevada Code § 33.018. 193 Georgia Code § 16-5-20(d) (excluding siblings); Mississippi Code § 97-3-7(3),(4); Missouri Annotated

Statutes § 455.101(5); Montana Code § 45-5-206(2); Nevada Revised Statutes § 33.018; Ohio Revised Code § 2919.25(F).

194 Mississippi Code § 97-3-7(3),(4); Nevada Revised Statutes § 33.018; Ohio Revised Code § 2919.25(F). 195 Missouri Annotated Statutes § 455.101(5); Montana Code § 45-5-206(2); Nevada Revised Statutes §

33.018. 196 See, eg, Georgia Code § 19-13-10; Mississippi Code § 93-21-3(a); Missouri Annotated Statutes §

455.010. 197 Violence Against Women Act of 1994 18 USC (US) §§ 2266 (7), (10). 198 Consultation Paper, Question 7–3. 199 Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Inner City

Legal Centre and The Safe Relationships Project, Submission FV 192, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission


small number of stakeholders responding to this issue expressly considered whether there is a need for criminal law responses to family violence to define or otherwise incorporate family relationships,200 and the issue of alignment between civil and criminal laws.201 These views are addressed below.

Is there a need for criminal laws to define or incorporate family relationships?

14.126 Two stakeholders cautioned against prescribing a family relationship between the offender and the victim as an element of any potential family-violence specific criminal offences. As noted in Chapter 13, Professor Julie Stubbs commented that such an approach would require the criminal law to ‘weigh the importance of the family versus strangers’, and that a preferable basis for a criminal law response to family violence is the existence of ‘a pattern of controlling, coercive or dominating behaviour’ on the part of the accused towards the victim.202

14.127 The NSW ODPP commented that a criminal law definition of a family relationship would duplicate existing provisions incorporating the dynamics of family violence—for example, sentencing factors directed towards offences committed in the home, in the presence of a child or in abuse of a relationship of trust or authority. The ODPP commented that any definition of ‘family relationship’ would be ‘problematic in determining the precise extent of the family’.203

Categories of family relationships and alignment with civil law definitions

Categories of family relationships

14.128 The majority of stakeholders supporting a criminal law definition of a family ‘relationship’ in the context of offences expressed a preference for the broadest possible definition, recognising, for example, past or current relationships including: dating, cohabiting and spousal relationships; family members; relatives; children of an intimate partner; those who fall within Indigenous concepts of family; and those who fall within culturally recognised groups. These categories of relationships are consistent with the Commissions’ approach in Recommendation 7–6.

14.129 While few stakeholders advanced reasons for their positions, some legal service providers emphasised the importance of recognising same-sex, transgender and intersex relationships, Indigenous kinship relationships, and other culturally recognised

FV 164, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010; P Easteal and A Hopkins, Submission FV 36, 12 May 2010.

200 J Stubbs, Submission FV 186, 25 June 2010; Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.

201 National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

202 J Stubbs, Submission FV 186, 25 June 2010. 203 Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.


familial relationships.204 Two stakeholders expressly supported the recognition of care relationships.205

Alignment of relationships recognised in criminal and civil laws

14.130 A small number of stakeholders commented on the alignment of the relationships recognised in family-violence related criminal laws with those contained in family violence legislation.206 The majority of these respondents supported alignment207—in particular with the Victorian family violence legislation208—without explanation. One legal service provider suggested that the Family Law Act 1975 (Cth) should provide the basis for alignment.209

Commissions’ views 14.131 The Commissions do not make any recommendations in respect of defining or recognising family relationships for the purposes of criminal law responses to family violence. However, the Commissions advance four broad views on the approach which ought to be taken to such recognition.

A family relationship should not be the sole or predominant element of criminal law responses to family violence

14.132 As a general proposition, the Commissions consider that a family relationship between the offender and the victim should not be the sole or predominant element of any form of criminal law response to family violence. As stated in Chapter 13, the Commissions consider that the criminal law must target the underlying nature and dynamics of family violence with greater precision, and should avoid discriminating between violence committed by family members and that committed by strangers.

In limited circumstances, it may be necessary to prescribe a family relationship as an element of certain criminal law responses to family violence

14.133 The Commissions acknowledge, however, that in some limited circumstances it may be necessary for criminal laws responding to family violence to

204 Inner City Legal Centre and The Safe Relationships Project, Submission FV 192, 25 June 2010;

Confidential, Submission FV 183, 25 June 2010; Confidential, Submission FV 164, 25 June 2010. 205 Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; P Easteal and A Hopkins,

Submission FV 36, 12 May 2010. 206 National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of

Victoria, Submission FV 220, 1 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

207 Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

208 Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

209 Confidential, Submission FV 83, 2 June 2010.


make specific reference to a family relationship between the offender and victim. The Commissions consider that this approach will be necessary in two categories of case.

14.134 First, reference to a family relationship may be necessary in respect of provisions that are directed towards promoting substantive equality between legal responses to family violence and non-familial violence. In particular, this category includes laws that are designed to rectify or avoid inequalities arising from the interpretation and application of general provisions in the family violence context—for example, the designation of a family relationship between the offender and the victim as a non-mitigating factor in sentencing,210 and the provision of legislative guidance about the potential relevance of family-violence related evidence.211 Reference to a family relationship between the offender and the victim may also be necessary where state and territory criminal laws have established separate defences specific to family violence victims who commit offences. As noted above and in Chapter 13, however, the Commissions favour criminal laws—including defences—of general application.

14.135 Secondly, it may be necessary to expressly incorporate a family relationship between the offender and the victim as an element of those offences in which the nature of the wrongdoing sought to be addressed is the exploitation of the family relationship itself—as distinct from the underlying dynamics of that relationship. The Commissions contemplate that offences in this category would be those imposing strict liability on the basis of a family relationship between the victim and the offender. For example, offences in the nature of incest may require a discrete definitional approach. Beyond making this observation, however, the Commissions do not comment specifically on the approach to be taken to identifying family relationships recognised in this category. This matter is appropriately determined in the context of drafting individual offences.

14.136 Given the confined nature of these categories, the Commissions consider that expressly recognising categories of family relationships in these circumstances would not duplicate existing criminal laws that address the dynamics of family violence but do not specifically refer to a family relationship between the offender and the victim. For example, the designation of a family relationship as a non-mitigating factor in sentencing would not displace existing aggravating sentencing factors of general application or matters of sentencing discretion that may be relevant to the family violence context.

14.137 The Commissions consider that it would not be unduly complex to define family relationships for these purposes. The Commissions note existing statutory definitions of categories of family relationships in various civil and criminal laws, and the recognition at common law that the commission of an offence in ‘the domestic context’ may be an aggravating sentencing factor in appropriate circumstances.

210 Rec 13–3. 211 Crimes Act 1958 (Vic) s 9AH; Evidence Act 1977 (Qld) s 132B. See Rec 14–5.


Where it is necessary to prescribe a family relationship as an element of criminal law responses to family violence, an inclusive definition is generally preferable

14.138 The Commissions consider that—in the limited circumstances in which it is necessary to refer specifically to a family relationship between the offender and the victim for the purposes of the first category of case identified above—an inclusive approach to recognising categories of relationships is preferable.

14.139 The Commissions consider that criminal law definitions of family relationships for these purposes should be expressed as including the same categories of relationships identified in Recommendation 7–6—namely:

• past or current intimate relationships, including dating, cohabiting and spousal relationships irrespective of the gender of the parties and whether the relationship is of a sexual nature;

• family members;

• relatives;

• children of an intimate partner;

• those who fall within Indigenous concepts of family; and

• those who fall within culturally recognised family groups.

14.140 A significant advantage of an inclusive—as opposed to an exhaustive—approach is that it maintains scope for judicial discretion in individual cases. This includes discretion in the application of categories of relationships in the inclusive list, and the identification of analogous categories in individual cases. An inclusive approach based upon the relationships identified in Recommendation 7–6 would further avoid the possibility that the categories of family relationships covered by the criminal law may be broader than those recognised under family violence legislation. This minimises the likelihood that circumstances of family violence may be relevant in proving and sentencing an offence, but the victim could not obtain a protection order in respect of the same conduct because he or she is incapable of being identified as a ‘person in need of protection’.

Alignment of the relationships recognised in criminal and family violence legislation should be considered on a case-by-case basis

14.141 Beyond the categories of relationships listed in Recommendation 7–6, however, the Commissions do not recommend the automatic alignment of relationships recognised under criminal and family violence laws. As identified in Chapter 7, the list of relationships in Recommendation 7–6 is intended as a minimum standard. Individual jurisdictions may recognise additional categories of relationships in their respective family violence legislation—for example, care relationships, housemates who are not in an intimate personal relationship, or persons who reasonably consider themselves to be family members having regard to a range of prescribed factors. Where family violence legislation recognises relationships exceeding the minimum stipulated categories in Recommendation 7–6, the question arises as to whether it is appropriate


to extend the boundaries of criminal redress to such relationships. The Commissions consider that this matter is appropriately one for jurisdictions to consider on a case-by-case basis, in light of the purposes served by the particular legislation in question.

14.142 Further, where jurisdictions have currently aligned the categories of relationships recognised under criminal and family violence laws,212 it may be necessary to reconsider the appropriateness of ongoing alignment following potential implementation of Recommendation 7–6. Reconsideration will be particularly important where the relationships recognised in criminal laws are incorporated by reference to family violence legislation, and Recommendation 7–6 would expand the categories of relationships currently recognised in the relevant family violence legislation.

212 See, eg, Criminal Code Act Compilation 1913 (WA) s 221; Criminal Code (Qld) s 304B.

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